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Massachusetts Liberal

Observations on politics, the media and life in Massachusetts and beyond from the left side of the road.

Friday, November 07, 2008

"I am not a crook"

It's a variation on the argument that Richard Nixon made to conceal the Watergate tapes and that George Bush has used to avoid talking about waterboarding. It's not something that inspires great confidence when it's used to avoid a subpoena for official records.

House Speaker Sal DiMasi may believe he is standing up for a deep-seated constitutional principle when he invokes legislative immunity in his refusal to comply with an Ethics Commission probe into relating to payments received by Richard Vitale and other associates from Cognos ULC, a Burlington software company that won multimillion-dollar state contracts.

But to the public, DiMasi is performing an act similar to those public officials facing questions about the legality of their actions. Since executive privilege isn't available, legislative immunity seems like a good fall back.

The concept is similar -- and enshrined in Article 21 of the Massachusetts Constitution:
"The freedom of deliberation, speech and debate, in either house of the Legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever."
There is also a clause in the U.S. Constitution that bars prosecutors or others from obtaining those sort of papers. That is being used by indicted congressmen Rick Renzi of Arizona and William Jefferson of Louisiana.

I'm not a lawyer, so I have no standing to speak on the merits of the legal argument. People with that degree, such as civil liberties attorney Harvey Silverglate, do see the merits.
"This has been very well respected privilege for centuries," he said. "It dates back to the English common law days. These battles are not new."
But if I were offering political or public relations advice to a politician, I would strongly argue against it. Trying to protect your papers from review in an ethics probe only creates the impression that you have something to hide.

Maybe DiMasi and his House counsel are trying to work out a compromise -- to give the commission what it needs without bending to a legal demand. That would certainly be my advice.

Voluntary compliance looks a whole lot better than appearing to stonewall over a principle, even one apparently ground in common law.

Especially when it puts you in the company of Richard Nixon and William Jefferson.

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Blogger dan bosley said...

O L, There are two issues here. The first is public perception. One cannot win any public debate unless one gives the press everything and then more. Elected officials never win the public relations battle because the idea that something is wrong has already been planted. We know this and realize that we lose the perception issue because it can not be the main element when trying to decide the correct public policy.

However, let's forget the Speaker and the current controversy and look at the principle behind Article 21 of the Constitution. That is not there to protect the Speaker as much as it is to protect the public. We cannot govern if the public is not involved. Setting Cognos aside, any company that comes into our offices should have a reasonable expectation of privacy. This rule would apply to all and if we start to divulge all of our work product, people and companies would not be forthcoming and our deliberations would suffer. What would happen, for example, if you knew details about a toxic chemical in a product and came to see me about changing the law? What if the company who produced the chemical could ask for my records and get your name and sue both of us to tie up deliberations for months, perhaps years? That would have a damping effect on you and I and our ability to set responsible pubic policy. Unfortunately, we can't pick and choose when to divulge or not divulge the inner communications of our offices. Once we start to waive that public protection, we can't then use it on other occasions. It doesn't apply to one company or conversation, but to all of our deliberations in our offices or with our colleagues.

There is one more issue. While we obviously take our ethics laws very seriously, there are apparently those in the Ethics Commission that are less than rigorous in following their own laws. These deliberations are supposed to be private in order to protect all parties until there is a final decision in these cases. Yet, it is standard operating procedure to see these things on the front page of the newspapers as they unfold. Perhaps someone should be looking at the leaks in the Commission. After all, if one is vindicated at the end of the day after the public has been given days and weeks of innuendo and insinuation, where does one go to get their reputation back?

November 07, 2008 8:39 AM  

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